Boeremag arguments 'absurd'

2003-06-23 16:23

Pretoria - "Nonsensical and absurd" is how the State described arguments on Monday by some of the 22 alleged Boeremag treason trialists that the current government and all its institutions were illegitimate.

"Does this mean the country is without government? Or is the former parliament revived?" prosecutor Paul Fick asked in the Pretoria High Court.

"Are all court judgments invalid? Must all convicted 'farm murderers' be freed?"

The State claims the 22 men plotted as members of a rightwing organisation calling itself the Boeremag to overthrow the government.

Special plea

Thirteen of them entered a special plea in the morning contesting the jurisdiction of the court.

Defence attorney Paul Kruger contended on their behalf that white voters in the 1992 referendum on a new political order were never asked to approve the new Constitution.

He argued this was in violation of an undertaking by the government of the day not to approve any constitutional legislation without a mandate from voters.

This meant the foundation for the current Constitution, which in turn formed the basis of all legislative, judicial and executive authority, was invalid.

Kruger also relied on an English common law rule that any form of self-government, once granted, could never be taken away.

This had in effect happened to his clients. They were able to exert real influence on governance prior to 1994, while their votes now were merely of academic importance.

Elections 'irregular'

A third basis for the application was that the 1994 elections were irregular - rendering the new parliament and the Constitution it adopted invalid.

Kruger also argued that the current Electoral Act was adopted while the 1983 Constitution was still in place - and was in contradiction thereof.

The men did not contend that the court had no jurisdiction whatsoever - just not over them, he said.

It did have authority over blacks - who were unable to vote before 1994 - and over people who previously had the vote but chose to accept changes in the country.

Fick said this made no sense.

"Must cases involving the murder of whites by blacks be tried, but a white person who kills a black person gets off scot-free because he does not recognise the government?, he asked.

South Africans twice voted into power the current government - in effect ratifying the Constitution, Fick argued.

To return to a constitution which lapsed nearly 10 years ago would plunge the country into total chaos.

Fick said the government of the time did have a mandate from voters to negotiate a new constitution. This was clear from the "Yes" vote in the 1992 referendum.

In any event, it had never been stated in any South African constitution that voters had to be consulted on such matters - and if they were, there was no obligation to give effect to their views.

There never was such a thing as separate self-governance for whites, Fick said.

Six plead not guilty

In the morning, six of the other men pleaded not guilty on all counts, two opted to plead at a later stage, and one - Tom Vorster - refused to plead.

Vorster claimed his rights had been violated to the extent that there was no longer any chance of his trial being fair. He alleged prison authorities confiscated documents he prepared for the trial.

The court entered a plea of not guilty on his behalf.

The matter was postponed to Tuesday for the defence to consider Fick's response to their arguments.

It was expected the trial would then be postponed to August 4 - the first day after the court's mid-year recess.

Defence counsel may use this time to line up witnesses - which could include former state president FW de Klerk and his constitutional development minister Roelf Meyer.

Kruger said they might be called to testify about their alleged promise not to accept constitutional changes without the approval of the white electorate.

The men face 42 charges ranging from high treason, terrorism and sabotage to murder, attempted murder and the illegal possession of explosives, firearms and ammunition.

The State withdrew a charge of illegally possessing ammunition on Monday, saying it duplicated another charge.

- SAPA